Identifying and Advocating Best Practices in the Criminal Justice System. A Texas-Centric Examination of Current Conditions, Reform Initiatives, and Emerging Issues with a Special Emphasis on Capital Punishment.

Thursday, 06 November 2014

Texas' highest criminal court on Wednesday threw out the 2005 conviction and death sentence of Alfred Dewayne Brown after finding that the Harris County District Attorney's Office withheld material evidence favorable to Brown's case.

In a brief order, the Texas Court of Criminal Appeals sent the case back to the lower court for a new trial.

District Attorney Devon Anderson now will have to decide whether to retry Brown for the 2003 death of veteran Houston Police Officer Charles R. Clark. Clark was shot while trying to stop the burglary of a

And:

Brown had always maintained his innocence, insisting he was at his girlfriend's apartment the morning of the shooting, and made a land line call that could prove it. But his attorneys presented no evidence to back up that alibi. And his strongest alibi witness, his girlfriend, later changed her story and testified against him after being threatened by a grand jury.

After Brown lost his direct appeal, a private law firm, K&L Gates LLP, took Brown's case in 2007 and began searching for evidence to support his alibi.

Then, in the spring of 2013, a Houston homicide detective found an old box of documents from Brown's case while cleaning out his garage. Inside was a phone record that showed a land line call was made from the girlfriend's apartment exactly when Brown said he made it.

On Wednesday, a year and a half after Brown’s trial judge recommended a new trial, the Texas Court of Criminal Appeals overturned his conviction and sent the case back for potential retrial. The appeals court found that telephone records bolstering Brown's case were withheld at trial, records that apparently surfaced last year when a homicide investigator cleaned out his garage.

Former Harris County Dist. Atty. Mike Anderson had said a new trial was warranted. Anderson died last year, and his widow, a former judge who was appointed to replace him then elected on Tuesday, said she was still deciding Wednesday.

And:

Anthony Graves, another Texas death row prisoner whose conviction was overturned in 2010, had tried to help Brown win a new trial, speaking with Brown’s girlfriend about the case and to the Houston Chronicle.

Related posts are in the prosecutorial misconduct category index. The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

Wednesday, 15 January 2014

The Texas Forensic Science Commission voted unanimously Friday morning to move forward with a first-in-the-nation review of state criminal convictions that included testimony on microscopic hair analysis – a field of forensics deemed unreliable in a sweeping 2009 report on the state of forensics by the National Academy of Sciences.

Texas' planned review piggybacks on a groundbreaking federal investigation announced in July 2013. That inquiry involves 2,000 criminal cases in which hair comparison analysis linking a defendant to crime scene evidence was provided by Federal Bureau of Investigation examiners. That review is being conducted via an agreement between the FBI and Department of Justice with the New York-based Innocence Project and National Association of Criminal Defense Lawyers.

Many of the Texas' hair examiners were trained by the FBI, so the state review makes sense, according to the Innocence Project of Texas, which is among the stakeholders collaborating with the FSC on the review. Indeed, the FSC noted this in its most recent annual report. "The FBI has also indicated that it trained many microscopic hair analysts in state and local crime laboratories, including some laboratories in Texas," reads the report. "Of course, this does not necessarily mean that state and local analysts made similar [scientific] overstatements" as did the FBI analysts at issue in the federal review. Still, as it is with that review, Texas' inquiry will focus on older cases, because microscopic hair analysis was more common in the 1980s and 1990s, before the rise of DNA testing.

Thursday, 02 January 2014

An advisory submitted to the 31st District Court in Pampa and the Texas Attorney General’s office by convicted murderer Hank Skinner’s attorneys points to Robert Donnell, Twila Busby’s deceased uncle, as the real killer in the triple homicide that occurred on New Year’s Eve in 1993.

In the advisory, submitted in August, Skinner’s attorneys, Douglas Robinson and Robert Owen, cite results of a third round of DNA tests performed by an independent laboratory in Lorton, Va.

Robinson and Owen have represented Skinner for more than a decade and have represented other death-row inmates.

The attorneys will be presenting evidence to support Skinner’s innocence at an evidentiary hearing scheduled for Feb. 3 and 4 in Pampa. The court also will consider evidence presented by the state.

Robinson and Owen could not say at this time if Skinner will be present at the hearing.

The state Attorney General’s Office has taken over the case and will present the state’s case at the hearing.

Prosecutors argued Wednesday that no U.S. Supreme Court decision ties the hands of the Mississippi appellate courts in upholding death sentences even when a trial jury considers inadmissible evidence.

Arguments before the Mississippi Supreme Court came in a post-conviction petition by Roger Gillett, who was sentenced to death in 2007 for his role in the deaths of a Hattiesburg couple. The appeal addresses only the sentencing phase of Gillett’s trial.

Gillett and Lisa Jo Chamberlin were convicted in the 2004 slayings of Linda Heintzelman and Heintzelman’s boyfriend, Vernon Hullett, in Hattiesburg. The victims’ bodies were later found in a freezer on a farm in Russell, Kan.

Prosecutors said Gillett and Chamberlin were living with the victims in Hattiesburg, at the time of the slayings.

Chamberlin, in a taped confession played at her trial, said the victims were killed because they wouldn’t open a safe in Hullett’s home, according to court records.

A series of U.S. Supreme Court decisions have addressed the issues of “harmless error” and “reweighing factors” in death penalty. But Special Assistant Mississippi Attorney General Cameron Benton told the Mississippi court none of those decisions made invalid a state law that says the state court can uphold murderers’ death sentences, even if their sentencing juries wrongly considered some adverse evidence.

In Mississippi, the death penalty can be imposed by a jury only against a defendant found guilty of capital murder, and the jury must find certain aggravating circumstances. Aggravating circumstances include particularly heinous acts of violence, violent criminal histories or other factors that warrant the death penalty as determined by judges and juries.

However, in 2002, the U.S. Supreme Court said jurors, not judges, had to decide whether sufficient aggravating circumstances existed to support a death penalty decision. Then, in 2006, the U.S. Supreme Court said in a California case that a death sentence must be set aside if a jury considered inadmissible evidence that otherwise would not have been before it.

Friday, 01 November 2013

The defendant,
Eduardo Bojorquez, would have been convicted, by a jury or through a
guilty plea, and sentenced to prison. Nobody would have been the wiser
about how the conviction was won.

And:

A couple of young prosecutors, relatively recent graduates of the
University of Arizona’s James E. Rogers College of Law, saw something
wrong: a federal agent who they thought had lied about the case. Rather
than working things out behind the scenes, they blew the whistle.

Assistant Santa Cruz County Attorney Vanessa Cartwright, who grew up in Tucson and graduated from the law school in 2007, alerted her boss, Liliana Ortega,
the chief deputy overseeing criminal cases, a 1998 UA law grad. They
are two of just nine attorneys in the office, in a town that is
practically fed-ville — home to hundreds and hundreds of federal agents.

On Sept. 16, Ortega wrote a jarring letter to the man in charge of the Homeland Security Investigations office in Nogales:

“One
issue is the case agent’s late disclosure of a surveillance video
showing Mr. Bojorquez involved in the drug smuggling offense. Although
this video existed since 2009, the agent did not make it available for
viewing until August of 2013, a few weeks before trial. This late
disclosure, if not intentional, was at minimum grossly negligent on
Agent (Eduardo) Cota’s part.”

“More disturbing was the content of
the video. The video directly contradicted statements that Agent Cota
made to the prosecutor, to defense counsel and in the agent’s own
reports. The agent also omitted vital information from the reports and
from his discussions with the prosecutor that would have impacted the
filing of charges against Mr. Bojorquez.”

A heartening story out of Arizona has emerged in the midst of Michael Kiefer’s four-part series for The Arizona Republic on prosecutors who commit misconduct and suffer few, if any, consequences. Tim Stellar, opinion columnist for The Arizona Daily Star, recently tipped his hat
to two county prosecutors who not only forsook a conviction in order to
play by the rules, but held their colleagues to account in the process.

Concluding his excellent series on prosecutorial misconduct which
profiled numerous prominent Arizona prosecutors who have not only failed
to abide by their ethical duties, but have seemingly been rewarded for
them with notoriety and promotions in many instances, Kiefer discussed
what, if any, avenues there are to punish unethical prosecutors.

Scott,
who had been held without bail since his Oct. 9 arrest, was then set
free. He reunited with his mother outside the courthouse.

"I knew he was innocent but the way they came at us, came at me, came at my son, it was unjust," Netta Williams told KCBS-TV. "The world that we live in, you're supposed to be innocent until proven guilty."

Scott
was charged with shooting his 18-year-old ex-girlfriend, her
22-year-old boyfriend and the man's 64-year-old grandmother on Oct. 8 in
Inglewood. The boyfriend survived.

In January, the New York City medical examiner’s office confirmed
that it was reviewing more than 800 rape cases from a 10-year period
during which DNA evidence may have been mishandled by a lab technician
who resigned in 2011 after an internal review uncovered problems with
her work.

The review, then about half complete, had already turned up 26 cases
in which the former technician failed to detect the presence of DNA
evidence, including one in which the evidence has since led to an arrest
in a 10-year-old rape case. The review uncovered 19 cases in which DNA
evidence was commingled with DNA evidence from other cases.

A month earlier, a former chemist at a now-shuttered state drug lab
in Boston was indicted on 27 counts of obstructing justice, tampering
with evidence, perjury and other charges in connection with her handling
of some of the tens of thousands of drug cases she worked on during her
nine years there. “Little Annie” Dookhan is accused of faking test
results, intentionally contaminating and padding suspected drug samples,
forging co-workers’ signatures on lab reports, and falsely claiming to
have a master’s degree in chemistry.

The ongoing investigation into her work—which could upend thousands
of drug convictions—has already led to the closing of the lab, the
release of hundreds of convicted drug offenders, and the termination of
one lab official and resignation of another. It also led to the
resignations of state Public Health Commissioner John Auerbach, whose
office oversaw the lab, and Norfolk Assistant District Attorney George
Papachristos, who was found to have had an inappropriately personal
(albeit not romantic) relationship with Dookhan.

A few months before that, the St. Paul, Minn., police department’s
crime lab suspended its drug analysis and fingerprint examination
operations after two assistant public defenders raised serious concerns
about the reliability of its testing practices. A subsequent review by
two independent consultants identified major flaws in nearly every
aspect of the lab’s operation, including dirty equipment, a lack of
standard operating procedures, faulty testing techniques, illegible
reports, and a woeful ignorance of basic scientific principles.

Monday, 12 August 2013

Claude Jones had always claimed that he was innocent of the 1989 murder of an East Texas liquor store owner. But DNA testing wasn’t available in time to save his life.

Not until a decade after Jones was executed did scientists using DNA analysis confirm that a hair found at the crime scene did not belong to Jones. It was the murder victim’s.

Across the nation, more than 70 exonerations have involved the improper use of hair sampling — a practice, now considered “junk science,” in which a strand of hair is examined under a miscroscope to identify the people who were at a crime scene.

The Texas Forensic Science Commission wants to determine whether anyone has been wrongly imprisoned by identifying older criminal cases in which microscopic hair fibers were used to convict people of rape, murder, robbery and lesser crimes. The goal is to use DNA to find out whether any other miscarriages of justice have occurred.

“We have a moral responsibility to find out,” said Arthur J. Eisenberg, a forensic science commissioner who is a DNA expert and a co-director of the University of North Texas Center for Human Identification in Fort Worth.

The state’s top forensic watchdog agency is surveying crime labs large and small to learn the methods used to conduct hair analysis that did not involve verification with DNA. The Forensic Science Commission’s review is part of a national effort by the FBI and the Justice Department to clear up any false convictions due to improper hair comparisons.

Thursday, 25 July 2013

Today's New York Times publishes the OpEd, "High-Tech, High-Risk Forensics," by Osagie K. Obasogie. He is a professor of law at the University of California, Hastings. Here's the beginning:

WHEN the police arrived last November at the
ransacked mansion of the millionaire investor Raveesh Kumra, outside of
San Jose, Calif., they found Mr. Kumra had been blindfolded, tied and
gagged. The robbers took cash, rare coins and ultimately Mr. Kumra’s
life; he died at the scene, suffocated by the packaging tape used to
stifle his screams. A forensics team found DNA on his fingernails that
belonged to an unknown person, presumably one of the assailants. The
sample was put into a DNA database and turned up a “hit” — a local man
by the name of Lukis Anderson.

Bingo. Mr. Anderson was arrested and charged with murder.

There was one small problem: the 26-year-old Mr. Anderson couldn’t have
been the culprit. During the night in question, he was at the Santa
Clara Valley Medical Center, suffering from severe intoxication.

Yet he spent more than five months in jail with a possible death
sentence hanging over his head. Once presented with Mr. Anderson’s
hospital records, prosecutors struggled to figure out how an innocent
man’s DNA could have ended up on a murder victim.

Late last month, prosecutors announced what they believe to be the
answer: the paramedics who transported Mr. Anderson to the hospital were
the very same individuals who responded to the crime scene at the
mansion a few hours later. Prosecutors now conclude that at some point,
Mr. Anderson’s DNA must have been accidentally transferred to Mr.
Kumra’s body — likely by way of the paramedics’ clothing or equipment.

This theory of transference is still under investigation. Nevertheless,
the certainty with which prosecutors charged Mr. Anderson with murder
highlights the very real injustices that can occur when we place too
much faith in DNA forensic technologies.

The Supreme Court says prosecutors can use a person’s silence against
them if it comes before he’s told of his right to remain silent.

The 5-4 ruling comes in the case of Genovevo Salinas, who was
convicted of a 1992 murder. During police questioning, and before he was
arrested or read his Miranda rights, Salinas answered some questions
but did not answer when asked if a shotgun he had access to would match
up with the murder weapon.

Prosecutors in Texas used his silence on that question in convicting
him of murder, saying it helped demonstrate his guilt. Salinas appealed,
saying his Fifth Amendment rights to stay silent should have kept
lawyers from using his silence against him in court. Texas courts
disagreed, saying pre-Miranda silence is not protected by the
Constitution.

The high court upheld that decision.

The Fifth
Amendment protects Americans against forced self-incrimination, with
the Supreme Court saying that prosecutors cannot comment on a
defendant’s refusal to testify at trial. The courts have expanded that
right to answering questions in police custody, with police required to
tell people under arrest they have a right to remain silent without it
being used in court.

"SCOTUS: Silence can be used against defendant who didn’t claim privilege in voluntary meeting," is the ABA Journal coverage by Debra Cassens Weiss.

Justice Samuel A. Alito Jr. wrote the controlling opinion
(PDF), joined by Chief Justice John G. Roberts Jr. and Justice Anthony
M. Kennedy. “Petitioner’s Fifth Amendment claim fails because he did not
expressly invoke the privilege against self-incrimination in response
to the officer’s question,” Alito wrote.

The court had accepted the case to resolve a split of authority on
whether prosecutors can use a defendant’s silence at trial, when the
defendant’s interview with police takes place before a formal arrest.
“But because petitioner did not invoke the privilege during his
interview,” Alito said, “we find it unnecessary to reach that question.”

Justice Clarence Thomas, in an opinion joined by Justice Antonin
Scalia, said he would rule against Salinas even if he had formally
invoked the privilege. The prosecutor did not compel Salinas to give
self-incriminating testimony, Thomas said, so Salinas’ claim should
fail. “A defendant is not ‘compelled . . . to be a witness against
himself’ simply because a jury has been told that it may draw an
adverse inference from his silence,” Thomas wrote.

A murder suspect's silence during initial questioning by police can be used against him at trial, the sharply divided Supreme Court ruled Monday.

Because Genovevo Salinas freely answer several questions posed by officers about two murders that had occurred in Houston, Texas, in December 1992, prosecutors were free to use his refusal to answer one specific question - about the murder weapon - at his trial, according to the ruling.

Salinas had been a suspect in the murders of Juan and Hector Garza from the very beginning, but he eluded the police for nearly 15 years before he was tracked down and put on trial.

Don’t let the U.S. Supreme Court’s
very contemporary cases on gene patenting and same-sex marriage
fool you: At least one justice is still living in the 18th
century and doesn’t care who knows it.

Justice Clarence Thomas followed his astonishingly
consistent originalism in Alleyne v. U.S. today, joined by the
court’s four liberals -- and none of its conservatives -- in
holding that a fact that increases a defendant’s mandatory
minimum sentence must be found true by the jury, not by the
judge alone.

Just a few minutes earlier, however, it was announced that
Thomas had provided the deciding vote in Salinas v. Texas,
arguing that a defendant’s exercising the right to remain silent
can be used by the prosecutor to argue to the jury that silence
is evidence of guilt.

From a policy perspective, these two opinions, one liberal
and one conservative, make no sense. The only way to reconcile
them is to enter the mind of Justice Thomas, in which the
court’s job is to bring us back to the nation’s founding and
damn the consequences.

Thomas’s opinion on what facts must be submitted to the
jury derives from a series of opinions he has written over the
past 15 years, all of which amount to a concerted historical
attack on the way modern legislatures and judges handle criminal
punishment. In the good old days, the English common law defined
a limited set of felonies, and they all had the same punishment:
death. Like the Islamic Shariah, the Jewish Halakha and many
other early legal systems, the common law wasn’t so much
bloodthirsty as designed to operate in an environment with
little formal police enforcement. Capital punishment was
counterbalanced by a low likelihood of detection -- kind of like
harsh sentences for insider trading.

Friday, 07 June 2013

Florida has become the latest state to adopt new
legislation that will make it tougher to admit expert evidence
in court cases, but some plaintiffs' lawyers say the move could
make litigation more costly and time-consuming.

Florida's Republican Governor Rick Scott on Wednesday signed
into law H.B. 7015. The law, which is scheduled to go into
effect on July 1, replaces the so-called Frye standard with the
more rigorous Daubert standard.

Under the U.S. Supreme Court's 1923 decision in Frye v.
U.S., expert evidence is admissible when the expert's methods or
practices are generally accepted within the scientific
community. In the 1993 decision Daubert v. Merrell Dow
Pharmaceuticals, that standard was replaced with a more
expansive test, which requires a judge to use a multipart test
to determine whether expert testimony is sufficiently reliable.

While federal courts and a number of states including
Arizona and Wisconsin have adopted Daubert, Florida remained a
Frye state.

Florida's expert evidence standards have made the state a
destination for "litigation tourism," making it more attractive
to lawyers whose experts were disqualified under a more exacting
Daubert standard, according to Florida attorney Stephen Mahle,
who specializes in Daubert issues.

After several unsuccessful attempts to adopt the Daubert
standard, H.B. 7015 was passed by the Florida Senate and the
state House of Representatives on April 29. Scott signed it into
law on Wednesday, saying it would create a "fairer system."

The photo of Gov. Rick Perry
signing legislation that diminishes the chances of wrongful convictions
in Texas is rich in irony. More important, it projects an indelible
sense of job undone.

The irony is embodied in the now-deceased person of Cameron Todd Willingham,
who also points to the unfinished work. Those intimately familiar with
Texas' criminal justice history can tell you that Willingham, even more
than Michael Morton — whose case prompted this legislation — is the state's prime example of wrongful conviction.

Morton's story is incredibly tragic. He spent nearly 25 years in
prison after being convicted in the beating death of his wife. The
prosecution withheld evidence that would have cleared him. Thanks to the
work of the New York-based Innocence Project, Morton was exonerated by
DNA evidence that pointed to another man, who has since been convicted.

But Morton is alive. Texas executed Willingham in 2004, convicted on
the strength of highly flawed arson evidence for the deaths of his three
daughters in Corsicana. The evidence actually points to no arson.

The photo shows Perry signing the bill at his desk, flanked by Morton
and legislators. The irony: a report discrediting the evidence used to
convict Willingham came across that desk or one similar in plenty of
time for Perry to have spared Willingham's life.

It is altogether fitting that Texas, a state where some of the worst
of these transgressions have taken place, is confronting part of its
unconstitutional past the same week America commemorates the 50th anniversary of the Brady ruling, which came down unanimously from the high court on May 13, 1963. The Morton Act, which now awaits Gov. Rick Perry’s signature
after passage in both houses of the Texas legislature, is a bold,
progressive step that creates an “open-file” discovery rule requiring
prosecutors to share more information more quickly with defense
attorneys.

The new law means prosecutors now have an affirmative duty under state law to comply with Brady
by making sure defendants and their lawyers can see and copy all police
reports and witness statements. Prosecutors will be able to protect the
identity of witnesses — which always has been a sticking point in these
measures — but will have to provide defense counsel with a list of the
disclosed evidence. In other words, Texas now has taken a significant
step toward giving its criminal defendants, whose life or liberty are on
the line, many of the same discovery protections routinely afforded
litigants in state court civil cases, where neither life nor liberty are
at stake.

It’s about time. Morton spent 25 years in prison for the murder of
his wife before a DNA test exonerated him just a few years ago. The
behavior of his prosecutor, Ken Anderson, was so egregious that Anderson
himself now faces criminal charges
of tampering with evidence. Michael Toney also spent nearly 25 years in
a Texas prison because his prosecutors suppressed evidence about the
credibility of the only witnesses to testify directly against him.
Anthony Graves was relatively lucky — he spent just 18 years behind bars for a crime he did not commit.

The Morton Act will require prosecutors to play more fairly in criminal trials. And a related measure, Senate Bill 825,
also passed by the Texas House this week, addresses what will happen
when they don’t. This measure will give aggrieved criminal defendants
more time to challenge prosecutorial errors once they are discovered.
And, critically, it will publicly reprimand prosecutors who cheat. I’d
like to see harsher sanctions in these cases — more teeth to the measure
— but if the new law is faithfully observed by state court judges no
longer will the legal community in a particular jurisdiction be able to close ranks around district attorneys who violate the law.

Cohen's essay was written before Governor Perry signed the measure into law.

It appears the third time filed is the charm for a bill that allows
defendants to challenge their criminal convictions based on the state's
use at trial of junk or outdated science – but will it actually cure the
problem it seeks to address?

The Texas House Thursday morning unanimously passed Senate Bill 344, by Sen. John Whitmire, D-Houston, queueing up the bill for Gov. Rick Perry's signature, but whether it will have any bite to it is unclear.

As passed, the measure tells the Court of Criminal Appeals how
to consider scientific evidence challenged in writs of habeas corpus –
an issue that, aside from those cases involving DNA, remains a source of
some uncertainty and tension – including in cases that involve pure
junk, like dog scent-lineups, or cases that involve more evolved scientific understanding, as with the now discredited trifecta of "symptoms" once considered the hallmark of so-called "shaken baby syndrome."

As the law had to be changed in order to allow the CCA to consider
appeals specifically citing DNA evidence, so too SB 344 amends habeas
law to allow the court to grant relief where sufficient facts
demonstrate that relevant, and admissible, scientific evidence
contradicts that which the state used to convict, or that was
unavailable at the time the defendant was convicted. The bill also
prohibits the court from denying relief based on the fact that a
defendant either confessed to the crime or took a plea deal.

Friday, 17 May 2013

With exoneree Michael Morton by his side, Gov. Rick Perry on Thursday signed a measure that aims to avoid wrongful convictions by preventing prosecutors from suppressing evidence.

"This is a major victory for integrity and fairness in our judicial
system," Perry said of Senate Bill 1611, which was named for Morton, who
spent 25 years in prison before being exonerated. It was the governor's
first public signing ceremony of the session.

And:

Since his exoneration, Morton has lobbied lawmakers to pass
legislation that would prevent others from suffering the same fate.
Under SB 1611, prosecutors will be required to turn over evidence to
defendants accused of crimes and to keep a record of the evidence they
disclose. The landmark 1963 U.S. Supreme Court ruling in Brady v.
Maryland already requires prosecutors to give defendants information
that is “material either to guilt or to punishment.” The Morton Act
requires disclosure of evidence regardless of its materiality to guilt
or punishment. It is the first significant reform to Texas discovery
laws since 1965.

Perry said it was fitting that his signing of the Michael Morton Act
fell almost exactly 50 years after the Supreme Court issued the Brady
ruling.

State Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock,
wrote the bill and worked through a series of compromises during several
weeks of intense — and at times seemingly futile — negotiations.

Reps.
Senfronia Thompson, D-Houston, and Tryon Lewis, R-Odessa, moved the
bill rapidly through the House, ensuring that the delicate compromise
forged in the Senate was not undone by late changes or amendments.

Perry
used four pens to sign the bill into law, then presented them to
Morton, Ellis, Duncan and Thompson. At the end of the ceremony, Thompson
presented Morton with the gavel used to mark House passage of his
namesake legislation.

And:

• Ensures that defendants can
view, and electronically copy, all police offense reports and witness
statements in prosecution files.

• Protects witnesses and victims
by requiring defense lawyers to redact identifying information, such as
addresses and phone numbers, from documents shared with defendants and
potential witnesses.

• Allows defense lawyers to share prosecution
information with the defendant, investigators, experts and consulting
lawyers, but all others must be approved by the trial judge.

•
Requires prosecutors to list the evidence provided to defense lawyers,
creating a record for potential appeals or future legal disputes.

• Requires prosecutors to promptly disclose favorable evidence uncovered during and after trial.

Gov. Rick Perry on Thursday signed the Michael Morton Act into law
with Morton and the senators and representatives who made it possible at
his side.

Morton didn’t speak to the press, just smiled while Perry put ink to paper and kissed the pen after Perry was finished.

Authored by Sen. Rodney Ellis, D-Houston, and Sen. Robert Duncan,
R-Lubbock, the act creates a uniform open-file policy that requires
prosecutors to hand over all exculpatory evidence such at witness
testimony or offense reports.

Ellis said the case’s widespread media attention, and
proximity to Austin, may have helped it get passed during this
legislative session.

“The trial put the issue of discovery front and center for
months,” he said. “It put such a bright spotlight on the need for
discovery reform.”

Ken Anderson, then-Williamson County District Attorney, is
accused of deliberately withholding evidence from the defense that
indicated Morton’s innocence. As the bill passed the Texas House on May
14, Morton was present and was recognized by lawmakers.

The bill is one of several Ellis has authored or sponsored to aid exonerees. House Bill 166,
which would create a commission to review future exonerations, has
passed the Texas House, but is awaiting a vote in a senate committee. In
Texas, 117 people have been exonerated of crimes they didn’t commit,
causing the state to lead the nation in exonerations.

Gov. Rick Perry today signed Senate Bill 1611, the Michael Morton
Act, which will help prevent wrongful convictions in Texas. The governor
was joined by Sens. Rodney Ellis and Robert Duncan, Reps. Senfronia
Thompson and Tryon Lewis, and Michael Morton for the bill signing.

"Texas is a law-and-order state, and with that tradition comes a
responsibility to make our judicial process as transparent and open as
possible," Gov. Perry said. "Senate Bill 1611 helps serve that cause,
making our system fairer and helping prevent wrongful convictions and
penalties harsher than what is warranted by the facts."

The Michael Morton Act will allow Texas' criminal justice system to
be more responsive to a case, even after it has been tried, by ensuring a
more open discovery process. The bill's open file policy allows for
broader discovery, and removes barriers for accessing any evidence,
except for items that would affect the security of a victim or witness.

"Discovery reform is simply vital to the reliability and quality of
our justice system," Sen. Ellis said. "The Michael Morton Act will help
safeguard the innocent, convict only the guilty, and provide justice the
people of Texas can have faith in."

"I have long been an advocate for an efficient, effective and uniform
court system across Texas. This legislation is a giant step forward in
reaching that goal," Sen. Duncan said. "I am proud that stakeholders
from across the state were able to come together and set aside their
differences to improve our criminal justice system."

"The Michael Morton Act is an incredibly important step in creating a
more just Texas criminal justice system," Rep. Thompson said. "It will
improve the reliability of criminal convictions and ensure that we have a
quality justice system where all relevant evidence and facts are
brought to light, and allow for more efficient resolutions to criminal
proceedings."

Tuesday, 14 May 2013

The House on Monday approved the Michael
Morton Act, a measure designed to prevent wrongful convictions and named
in honor of a Texan who spent nearly 25 years in prison for a murder he
did not commit.

It would create a uniform “open file” policy in Texas, compelling
prosecutors to share case files with defense attorneys that can help
defendants’ cases.

Morton, 58, was sentenced to life in prison for
the 1986 slaying of his wife Christine, but freed in October 2011, after
DNA testing was done on a bloody bandanna originally found near the
couple’s Austin home. Investigators said the DNA evidence led them to
another man, Mark Alan Norwood, whose DNA was in a national database as a
result of his long criminal history.

On the 50th anniversary of the landmark U.S. Supreme Court ruling in Brady v. Maryland,
in which the justices ruled that prosecutors are obligated to provide
defendants with exculpatory evidence “material either to guilt or to
punishment,” the Texas House tentatively approved two bills meant to
prevent wrongful convictions.

State Rep. Senfronia Thompson,
D-Houston, said the measures, which she sponsored in the House, were
designed "to improve the reliability of criminal convictions."

Both measures come in response to the high-profile exoneration of Michael Morton
and the ongoing investigation and trials of the former prosecutor who
oversaw his wrongful conviction, state District Judge Ken Anderson of
Williamson County. Morton was convicted in 1987 of murdering his wife in
Austin. He was exonerated and released from prison in 2011 after DNA
testing linked another man to the crime. Morton's lawyers say that
Anderson violated Brady rules by withholding crucial evidence that could
have pointed to the real killer and prevented the innocent Morton from
spending 25 years in prison. Anderson has denied wrongdoing.

"This is a huge first step," Morton said in an interview outside the House gallery. "It will prevent all sorts of abuse."

Morton and his wife, Cynthia, looked on as legislators unanimously
approved the measures with little discussion. Lawmakers gave him a
standing ovation when Thompson introduced him to the chamber. Since his
release, Morton has lobbied lawmakers to enact reforms that would
prevent his tragedy from befalling others.

The Texas House tentatively approved the Michael Morton Act without
opposition and without debate Monday, then followed with unanimous
approval for a Morton-backed bill extending the statute of limitations
on misconduct complaints against prosecutors.

With final House
approval expected Tuesday, sending the bills to a receptive Gov. Rick
Perry, Morton finds himself in the midst of an extraordinary string of
victories — beginning with the biggest in October 2011, when he was
freed after almost 25 years in prison and declared innocent of the 1986
murder of his first wife, Christine.

Morton next turned the tables
on his prosecutor, former Williamson County District Attorney Ken
Anderson, pushing an unprecedented investigation that led to Anderson’s
arrest and brief detention last month after a special court found that
he intentionally hid evidence to help ensure Morton’s conviction.

On
Monday, seven weeks after watching a jury convict Mark Alan Norwood of
his wife’s murder, Morton sat in the House gallery as the two reform
bills received overwhelming support on the floor.

After the vote,
Morton said he expects the bills to reduce the likelihood that other
innocent people are wrongly convicted, particularly the Morton Act,
which requires Texas prosecutors to adopt a uniform “open file” policy
for sharing information with defendants before trial.

“Had it been
in force when I was tried and arrested and all that, I wouldn’t have
gone to prison, I wouldn’t have been convicted,” he said. “Open files
are common in most counties, but having it legislatively required is a
huge step to prevent all sorts of abuse. And I am very encouraged and
very happy about it.”

After the vote, Morton thanked his lobbyist, Thomas Ratliff, who took up the case pro bono.

“He
has done this all out of the kindness of his heart, something he
thought was very important and Thomas Ratliff should be patted on the
back,” he said. “Like a lot of people in my life these days, they’re not
accepting a dime. It restores some of my faith in people.”

The measure, which would take effect next year, faces a final procedural vote Monday and then heads to Gov. Rick Perry.

Morton
was exonerated by DNA evidence in the 1986 murder of then-wife
Christine Morton. Among evidence withheld during his trial was a record
of Morton’s young son saying his father wasn’t the “monster” who
murdered his mother.

Prosecutors never made the interview
available to defense lawyers. Morton’s exoneration sparked investigation
of the Williamson County prosecutor who led the case. Another man has
since been convicted of killing Christine Morton.

“This is an
incredible day for justice in Texas,” said Ellis. “We must weigh all
relevant evidence and ensure we bring all the relevant facts to light to
safeguard the innocent, convict only the guilty, and provide justice
the people of Texas can have faith in.”

“I want to thank Mr. Morton for holding our feet to the fire and making this happen,” he said.

The House also passed a bill by Sen. John Whitmire, D-Houston, that would increase prosecutor accountability.

Whitmire’s
bill would give exonerees four years after their release to file a
complaint of prosecutorial misconduct. Current statute of limitations
requires that a complaint be made within four years of when the
misconduct occurs, which can make it hard for convicted inmates to
access the resources to make their claim.

Monday, 15 April 2013

Its passage wasn’t as sure as it should have been, given that it was
as much a no-brainer as any piece of legislation could be, but this week
the Senate finally and unanimously passed the Michael Morton Act.

Morton
was on hand for the occasion Thursday. He stood, as the
American-Statesman’s Chuck Lindell reported, in a Capitol corridor while
holding the gavel Lt. Gov. David Dewhurst had used minutes earlier to
announce approval of the legislation named in his honor. The vote,
coming 18 months after Morton’s release from prison, was 31-0.

It’s
hard to imagine opposition to a bill designed to prevent wrongful
convictions by requiring prosecutors to share crucial information with
defense attorneys, but the Michael Morton Act appeared doomed Wednesday
until a delicate compromise, prodded along by Dewhurst, appeased
concerns by district attorneys that the bill threatened the safety of
witnesses and victims in some cases. So lawmakers added a few
restrictions to shield some identities.

Point taken on protecting
the potentially vulnerable. Now the House should follow the Senate’s
lead and pass the Michael Morton Act.

Wednesday’s intense negotiations — including not-so-gentle prodding
by Dewhurst, who gathered all the parties into a room in the afternoon
and told them not to emerge without an agreement — produced a
breakthrough on victim and witness information that saved the
legislation.

“It feels very, very good of course, but I know we’re
not through. We have the other side to go through, the House,” Morton
said.

State Rep. Senfronia Thompson, a highly respected 20-term Democrat from Houston, will shepherd the bill through the House.

Morton
will be there, too, hoping that the agreement forged by prosecutors,
defense lawyers and a half-dozen senators will find relatively easy
acceptance.

A year and a half after he took off his prison whites for the last
time, exoneree Michael Morton stood in the Senate beside his wife,
Cynthia, on Thursday as lawmakers in that chamber unanimously approved a
bill named in his honor that aims to prevent others from being
wrongfully convicted.

"Had this been in place when I was arrested, I probably wouldn't have
gone to prison," Morton said shortly before senators passed Senate Bill 1611, by Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock. It would require prosecutors to turn over evidence to defense lawyers in criminal cases.

Today — as in 1987 when Morton was tried — prosecutors aren't
required by state law to provide evidence to defense lawyers unless
ordered to by the court. Though many Texas prosecutors have some form of
open file policy, those procedures vary from county to county and
sometimes even within a district attorney's office. In a February report
based on a survey of more than 40 prosecutors' offices, Texas Appleseed
and Texas Defender Service, both justice advocacy organizations, found
that "lack of uniformity in discovery policies in Texas makes access to
justice dependent, in part, on where a defendant is charged."

Since his release from prison, Morton has been on a mission to see
the implementation of laws that help prevent wrongful convictions like
his and that hold prosecutors accountable when their decisions result in
innocent people losing years of liberty. The Senate has already
approved SB 825, by Sen. John Whitmire,
D-Houston, which would extend the statute of limitations for offenses
involving evidence suppression by district attorneys. Under current law,
the four-year statute of limitations begins ticking on such offenses
when they occur. Whitmire's proposal would begin the clock on the
statute of limitations at the time a wrongfully convicted defendant is
released from prison. That measure is awaiting a hearing Monday in the
House Committee on Judiciary and Civil Jurisprudence.

The Senate unanimously approved the Michael Morton Act, named in
honor of a Texan who spent nearly 25 years in prison for a murder he did
not commit and designed to prevent future wrongful convictions.

After
their vote Thursday, senators stood and applauded and Lt. Gov. David
Dewhurst banged a specially engraved wooden gavel that was later awarded
to a beaming Morton, who watched the proceedings from just off the
floor -- a long way from the prison cell he was sitting in two years
ago.

Ellis, a Houston Democrat, co-author with Sen. Robert Duncan,
Republican of Lubbock, credited Morton for using his “life’s tragedy” to
lobby strongly for the bill, SB 1611.

The legislation updates, broadens and clarifies the access defense
attorneys have to case files compiled by prosecutors. Morton spent
nearly 25 years in prison for the murder of his wife, but has maintained
in court that the DA kept vital information from him. Morton was freed
after DNA tests cleared him in 2011, despite years of efforts by the
DA’s office to keep evidence away from him for testing.

Ellis told the Senate that he thought months of work on the bill was
lost a few times, especially in the last week, after Sen. Joan Huffman,
R-Houston, began lobbying for changes after the bill already emerged
from committee. One key to breaking the impasse, I’m told, was Dallas
Sen. Royce West, a former prosecutor, who got involved in a
come-to-Jesus meeting among negotiators on Monday.

A moment of truth for district court judge Ken Anderson is expected to arrive April 19, when the court of inquiry investigating his alleged wrongdoing reconvenes.

At
1 p.m. at the county’s Justice Center in Georgetown, Judge Louis Sturns
is to hear closing arguments from attorneys, as he considers whether
Anderson – in his prior role as district attorney – withheld evidence
during Michael Morton’s 1987 murder trial. The judge has three issues to
consider: whether Anderson tampered with physical evidence, if he
tampered with a government record and/or he committed contempt of court.

If
Sturns rules Anderson did any of these, it’s possible Anderson could
face misdemeanor or felony criminal charges, but Sturns would also have
to rule statutes of limitations have not passed.

The court of inquiry – which was first in session Feb. 4-8 – is not an actual trial.

“This
is like a public grand jury proceeding and the judge is like the sole
person on the grand jury,” one lawyer familiar with the case said this
week. “He [Sturns] can say, ‘This should go forward [for prosecution].’
The standard for that is, ‘Is there probable cause?’”

Throughout
five days of February testimony, special prosecutor Rusty Hardin
produced witnesses who testified as to what they did and did not know
before and during Morton’s February 1987 trial.

The new report, Improving Discovery in Criminal Cases in Texas, is based on an analysis of discovery policies solicited from 43 district attorney’s offices across the state and interviews conducted by pro bono partner Locke Lord LLP in Dallas.

Criminal
justice in Texas could be fairer, faster and less likely to convict
innocent people if prosecutors and defense lawyers were required to
share more information before trial, a report by two legal advocacy
groups says.

Texas law does not require prosecutors to disclose
information that is commonly shared in most states, including police
reports, witness statements and reports compiled by expert witnesses,
says the report, “Improving Discovery in Criminal Cases in Texas,” to be
formally released Wednesday.

The result is a hodgepodge of rules
varying from county to county, with many district attorney’s offices
employing a robust open-file policy for defendants while others restrict
information, “meaning access to justice can depend, in part, on where
the case is filed,” the report says.

What’s more, Texas is the
only state that does not require some sort of mutual discovery before a
criminal trial, with defense lawyers opening their files to prosecutors
to reveal witness statements, expert opinions and other information that
does not incriminate the defendant.

“By disclosing all relevant
information, both parties are able to investigate and scrutinize the
evidence against the accused. This increases the likelihood that a just
result will be reached,” concludes the report, which was compiled by
Texas Appleseed, a nonprofit public interest law center, and the Texas
Defender Service, a nonprofit that represents death row inmates, by
examining the practices of more than 40 Texas counties.

The amount of evidence that Texans accused of crimes can get from
prosecutors varies across the state, leading to inequities in the way
justice is meted out, according to a report released Wednesday, which
suggests that requiring more transparency could prevent wrongful
convictions.

Texas Defender Service, which represents death row inmates, and Texas
Appleseed, a nonprofit that advocates for social justice, researched
discovery practices in 40 Texas counties. They found that the wide
variation in discovery practices among prosecutors makes access to
justice dependent upon the jurisdiction in which the defendant is
charged. Those findings, said Rebecca Bernhardt, a Texas Defender
Service spokeswoman, give weight to legislation filed in
both the House and Senate that would create uniform discovery procedures
and require both prosecutors and defense lawyers to share more
information in criminal trials.

“We hope that lawmakers get an understanding of the status quo and
understand the problems that exist under our current, outdated discovery
statute,” Bernhardt said.

Rob Kepple, executive director of the Texas District and County
Attorneys Association and a former prosecutor, said he agreed with the
conclusions of the report.

“A good open file discovery system could help prevent some problems,” Kepple said. “I think it’s a pretty good report.”

Efforts to reform discovery laws in Texas are not new but have picked up steam since the 2011 exoneration of Michael Morton.
He spent nearly 25 years in prison for his wife’s murder before DNA
evidence revealed that he was innocent and led to the arrest of another
man who is awaiting trial for the crime.

In an effort to combat the growing number of wrongful convictions in Texas, state Sen. John Whitmire,
D-Houston, on Tuesday filed a bill that would expand the statute of
limitations for filing with the State Bar grievances alleging
prosecutorial misconduct.

Senate Bill 825
would start once a person is released from prison on a wrongful
conviction the four-year statute of limitations for pursuing a complaint
of prosecutorial misconduct with the State Bar of Texas. The current
statute begins the clock at the time the violation occurs.

The proposed change in the law was prompted by the plight of Michael Morton
who was convicted and sentenced to life in prison for the 1986 murder
of his wife Christine. Morton was finally released from prison in 2011
after evidence testing revealed the DNA of another man, Mark Alan Norwood, was mingled with Christine's blood on a discarded blue bandana found after the murder behind the Morton's home.

Related posts are in the Michael Morton and Texas Legislature category indexes. The responsibility of the state to provide exculpatory evidence to
the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

Thursday, 14 February 2013

The Austin Chronicl reports, "Where's Your Evidence? Advances in forensic science have made physical evidence increasingly crucial in criminal justice – but the practice of preserving and maintaining that evidence is often underfunded, poorly managed, or just plain sloppy. It's by Jordan Smith. Here's the beginning of this detailed, must-read:

For more than a decade, lawyers for death row inmate Hank Skinner
fought prosecutors – in Gray County and the attorney general's office –
for the right to DNA-test certain items of evidence. Skinner was
convicted and sentenced to die for the 1993 murder of his girlfriend
Twila Busby and her two grown sons in the home they shared in the
Panhandle town of Pampa. The crime scene was bloody – Busby was
bludgeoned, her sons repeatedly stabbed – and while some DNA tests have
been performed, there was plenty of evidence that hadn't been tested,
including a sweat- and blood-stained windbreaker. The jacket is crucial,
attorney Rob Owen has argued; found next to Busby's body, the tan
snap-front jacket resembled one regularly worn by Busby's now-deceased
uncle Robert Donnell, who the defense claims was obsessed with Busby and
may have been her real killer. In short, testing the jacket might help
prove Skin­ner's innocence – or confirm his guilt.

On June 1, 2012, the state finally dropped its opposition
to the testing. Just two weeks later, Owen was again frustrated when
the AG's Office informed him that the windbreaker was missing.
"According to the state, every other piece of evidence in this case has
been preserved," he said at the time. "It is difficult to understand how
the state has managed to maintain custody of items as small as
fingernail clippings, while apparently losing something as large as a
man's windbreaker."

No one seems to know when or how the jacket went missing. The Pampa
Police Depart­ment, which investigated the murders, originally held all
of the evidence related to the case. When the time came for Skinner to
be tried, the evidence was handed over to Gray County. Some time after
Skinner was tried, the jacket simply disappeared – and no one knows
where it went, said Gary Noblett, a 41-year veteran of the Pampa PD and
custodian of its evidence and property storage. Over the years, he said,
a number of law enforcement types have called looking for it –
including officials with the AG's Office. "As far as I know of, no one's
ever been able to find that thing," he said. Skinner remains on death
row as DNA testing on other items of evidence continues.

Skinner's case is not unusual. Unfor­tun­ately, missing evidence is
"way more common than you'd think," says evidence expert John Vasquez.
Vasquez worked in property and evidence management for 25 years, first
for the military and then for the Fort Worth and Wichita Falls PDs,
before starting his own evidence-control consulting business.

Francis Newton was executed in 2005, following a 120 day reprieve ordered by Governor Perry to allow for forensic testing of evidence. The evidence had been stored improperly, however, and was contaminated.

Many observers believe that the large number of exonerations in Dallas County is due, in part at least, to the County's methodical preservation of biological evidence.

The StandDown Texas Project

The StandDown Texas Project was organized in 2000 to advocate a moratorium on executions and a state-sponsored review of Texas' application of the death penalty.
To stand down is to go off duty temporarily, especially to review safety procedures.

Steve Hall

Project Director Steve Hall was chief of staff to the Attorney General of Texas from 1983-1991; he was an administrator of the Texas Resource Center from 1993-1995. He has worked for the U.S. Congress and several Texas legislators. Hall is a former journalist.